Sub-State Governance through Territorial Autonomy

Transcription

1 Sub-State Governance through Territorial Autonomy A Comparative Study in Constitutional Law of Powers, Procedures and Institutions Bearbeitet von Markku Suksi 1. Auflage Buch. XXXIII, 685 S. Hardcover ISBN Format (B x L): 15,5 x 23,5 cm Gewicht: 1238 g schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 Contents 1 Introduction Identifying the Sub-State Identifying Governance and Research Issues Method and Materials Previous Research Description of the Sub-State Entities Included in the Study as Core Cases The Autonomy of Memel Link to Minority Rights The Elements of Autonomy in Memel Powers Participation The Executive International Relations Reflections The Relationship between Federalism and Autonomy Terminological Confusion The Characteristics of Federalism v. Autonomy Classical Understanding of Federalism Expanding the Frames of Federalism Institutional and Substantive Dimensions Distinguished The Characteristics of Autonomy v. Federalism Indications of a Separate Category of Autonomy Autonomy as a Distinct Category The Notions of Regional State, Devolution, and Regional Self-Government Regionalization and Autonomization Devolution of Powers Regional Self-Government in Europe xi

3 xii Contents 3.5 Conclusions Compiling the Building-Blocks of Autonomy Constructing a Provisional Definition of Autonomy Testing the Autonomy Definition Formulating a Definition of Territorial Autonomy Conflict Resolution in a Self-Determination Context as a General Frame for Sub-state Arrangements Conflict Resolution in Different Contexts of Time and Space The Åland Islands: From Risk of Secession and War to Peaceful Conflict Resolution Domestic Preliminaries in Anticipation of International Involvement? Decision by the League of Nations Domestic Implementation by a Special Act Recognition in the Constitution Involving the Åland Islands in the European Union Regional Citizenship and Special Rights Different Dimensions of the Jurisdiction and Its Funding Joint Adjudication of Autonomy Issues Application of Norms through State Courts Puerto Rico: Conflict Over the Form of Self-Determination Acquisition of Autonomous Territory by Conquest Compact of Government? The Ambiguous Position in Relation to the Federation Through Self-Determination to International Politics Zanzibar: Appeasing Internal Conflict by Uniting for Sub-state Status A Treaty as the Fundament Disputed Amendments to the Union Constitution Zanzibar s Own Constitution within the Union Zanzibar in the Union Constitution The Distinctiveness of the Zanzibari Jurisdiction The Unimplemented Constitutional Jurisdiction and Other Joint Bodies Unclear Funding Arrangements The Category of Zanzibari and the Special Rights Hong Kong: Resolving a Colonial Conflict through Autonomy Treaty-Based Decolonization The Broad Constitutional Frames for Autonomy The Basic Law as an Autonomy Statute Guarantee of Capitalist Economy and Common Law to Residents

4 Contents xiii 4.6 Scotland: Avoiding Even a Remote Possibility of Conflict by Granting Autonomy Deepening the Pre-existing Treaty-Based Autonomy Devolution by Referendum A Constitutional Convention as the Safeguard Parliamentary Sovereignty and Constitutional Review Aceh: Resolution of Internal Conflict by Internal Agreement Particular Form of Decentralisation A Special Solution for a Special Place A Multi-layered Jurisdiction Islamic Characteristics of the Jurisdiction Rights of Persons, Residents and Citizens Reflections The Distribution of Powers From Enumeration through Residual Powers to Open Arrangements Hong Kong: Enumeration (or Delegation under the Plenary Powers of the National Legislature?) High Degree of Autonomy Complete Legal Powers by Enumeration in Almost All Areas Possibility to Expand National Powers and to Return Hong Kong Legislation Interpreting the Basic Law: 1 þ 1 ¼ 1? The Åland Islands: Two Enumerations From Residual to Enumerated Powers Competence of Åland Mainly in Public Law Acts of Mixed Nature and Acts of Reference Bipolar Competence Control Making Ålandic Norms and Consent Decrees: Some Peculiarities of Norm Hierarchy Scotland: Lawmaking Against the Background of Parliamentary Sovereignty The Pledge of the Sewel Convention The Area of Residual Powers Dotted with UK Competence Multiple Competence Control of the Scottish Powers Consenting to Lawmaking by the UK Parliament within Scottish Powers Joint Discussions as a Mechanism for Resolving Competence Issues in Advance Zanzibar: Clear Residuality but Unclear Implementation Federal-Type Residual Competences The Principle of Duality

5 xiv Contents Problems in Implementing Competences Weak Forms of Consultation and Consent Two Lawmakers with a Joint Pool of Sovereignty Aceh: Unclear Implementation of the Settlement Residual Powers as the Starting Point? Large Amount of Overlap to Be Negotiated Consultation and Consent or Consultation and Consideration? Bylaws Issued under National Law and National Standards as the Normative Tool Puerto Rico: Residual Powers under Pressure of the Plenary Powers of Congress Matters Not Locally Inapplicable: Vast Area of Concurring Powers Treated as a State in the Federation Attenuated Power to Make Constitution and Laws Reflections Construction of Separate Legal Orders Accommodation of Different Legal Systems through Sub-state Jurisdictions Participation in Decision-Making Elections, and Some Referendums The Åland Islands: Legitimacy from Regional Citizenship Two Levels of Participation and Different Constituencies Proportional Elections with Political Groupings The Use of the Referendum in the EU Context Presidential and Parliamentary Elections Initiatives to the National Parliament Expanding Participation in Local Government Aceh: Creating a Regional Polity Participation at the Core of the Peace Agreement Local Political Parties Elections Administered within the National Frame Post-conflict Elections of the Governor Post-conflict Representation through an Elected Body Local Government and National Elections Other Forms of Public Bodies Scotland: The British Electoral Tradition Modernized Elections, Referendums and Consultations Combining Majoritarian and Proportional Elections Under UK Law National Parties Counting Votes in the Additional Member System

6 Contents xv The Scottish Parliament in Relation to the UK Parliament: The West Lothian Question Elections at Other Levels: UK, Europe, and Local Government Puerto Rico: Participation Confined to the Territory No Representation at the Federal Level Bicameral Representation through Voting in a Mixed System Party Constellations According to the Status Issue Referendums on the Status Issue, Constitutional Amendments and Other Matters Zanzibar: Troubled Forms and Practices of Participation From One Party to Two Parties and Beyond (or Back?) The Right to Vote in Divisive Elections Electing the Powerful Executive Over-Representation at the National Level Two Different Election Commissions Hong Kong: Participation Contained Towards Universal Suffrage Elections through Geographical and Functional Constituencies Indirect Election of the Chief Executive Elections in Local Government and within the Indigenous Community Selection of Delegates to the NPC and to the NPCSC Reflections The Executive Power Both Parliamentary and Presidential Governance The Åland Islands: Normal Parliamentarism with a Slight Modification Implementing Three Legal Orders Political Accountability The Implementing Organs of the Government Contacts with the National Government The Role of the Language Scotland: Traditional Parliamentary Environment Horizontal Political Accountability Integration with the National Government Implementation of Devolved Competence Zanzibar: Presidential Governance in a Power-Sharing Context Presidentialism with the Opposition Involved or Revolutionary One-Man Government? Impeachment and Accountability Particular Governmental Structures Regional and Local Government

7 xvi Contents 7.5 Aceh: Regional Authority and National Presence through the Governor Broad Powers of the Governor Link to National Government Complicated Impeachment and Weak Forms of Accountability The Upward Connection of Governmental Departments Puerto Rico: The Model of the National Executive Duplicated Executive Powers Detailed in the Constitution Impeachment in Its Original Form General and Special Inter-governmental Contacts Hong Kong: National Interest in the Executive Little Horizontal Accountability Impeachment in the Hands of the National Government The Chief Executive as the Focal Point in the Executive Council Hierarchically Led Administrative Structures Reciprocal Administrative Presence of the Central Government and the HKSAR Reflections International Relations From Exclusion to Inclusion Puerto Rico: No Involvement in Foreign Powers Zanzibar: Clearly a Union Matter Aceh: Low-Level Activity Permitted Scotland: Some Involvement The Åland Islands: Involvement with Some Problems Conclusion and Implementation of Treaties The Åland Islands in the European Union Breaches of EU Law Pecuniary Liability for Breaches of Treaty Law Bringing in Autonomous Territories in Nordic Cooperation Hong Kong: Competence Granted Broad Competence in International Relations Distribution of Powers in the Conclusion and Implementation of Treaties Relations with States, Inter-governmental Organizations and Non-governmental Organizations Reflections Concluding Remarks Confirming the Definition of Territorial Autonomy Applying the Elements of Autonomy

8 Contents xvii 9.3 Conflict-Resolution and Self-Determination Various Autonomy Positions Specific Reflections Concerning the Sub-state Entities Particular Issues in Particular Places Zanzibar The Åland Islands Hong Kong Scotland Puerto Rico Aceh General Trends of Sub-state Organization Appendix References Index